EPA's October 2006 certiorari petition in U.S.E.P.A. v. Defenders of Wildlife, from the decision at 420 F.3d 946 (9th Cir. 2005), which held that the ESA required EPA to consider the impact on endangered and threatened species and their habitat when the agency decides to transfer Clean Water Act discharge permitting authority to a state - petition and appendix
Posted: November 10, 2006

Western Watersheds Project v. Matejko (9th Cir. Nov. 1, 2006) (amended) - BLM's failure to regulate private water diversion did not require ESA Section 7 consultation
Posted: November 10, 2006

Washington Toxics v. U.S. Dep't of Interior (W.D. Wash. Aug. 24, 2006) - invalidating counterpart regulations as applied to pesticide registration
Posted: November 10, 2006

In an opinion issued late last month in Western Watersheds Project v. Matejko, No. 05-35178 (9th Cir. July 24, 2006), the Ninth Circuit Court of Appeals held that the Bureau of Land Management's ("BLM") failure to regulate private diversions of water for irrigation did not require consultation under ESA section 7(a)(2), 16 U.S.C. 1536(a)(2).  Section 7(a)(2) requires a federal agency to consult with either the United States Fish & Wildlife Service or NOAA Fisheries to "insure that any action authorized, funded, or carried out by such agency…is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of [critical] habitat of such species…." 16 U.S.C. 1536(a)(2) (emphasis added).

The Ninth Circuit cited the plain language of the statute and noted the absence of "failure to act" among the actions triggering the requirement to consult.  The Court contrasted section 7(a)(2) with ESA section 11(g)(1)(C), which expressly authorizes citizen suits "where there is an alleged failure of the Secretary to perform any act or duty … which is not discretionary."  It concluded that "[b]ecause the … diversions did not result from affirmative BLM actions authorizing, funding, or carrying out the activity, there is no duty to consult."

The Court also rejected the plaintiff's argument that the BLM's continuing decision not to enforce its regulatory discretion over these diversions constituted an ongoing agency action that required consultation.  It cited a series of regulations and internal agency documents and concluded that, to the extent the BLM had such discretion at some time in the past, it has not retained this discretion.  Thus, "[e]ven if the BLM could have retained the power to regulate the … diversions, its determination made years ago to limit such power is not an 'ongoing agency action.'"

On August 24, 2006, Judge John C. Coughenour of the United States District Court for the Western District of Washington issued an opinion (see attached) inWashington Toxics Coalition, et al. v. United States Department of Interior, et al., Case No. C04-1998C, which invalidated certain regulations that were intended to implement Endangered Species Act ("ESA") section 7 with respect to EPA actions undertaken pursuant to the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA").  These so-called "counterpart regulations," jointly issued by NOAA Fisheries and the U.S. Fish and Wildlife Service (collectively, "the Services") in 2004, were an attempt to streamline and accelerate the process of pesticide registration and re-registration under FIFRA, a process that all parties agreed was "a task of gargantuan proportions" for EPA.

In response to the plaintiffs' substantive and procedural ESA challenges, Judge Coughenour's opinion invalidated counterpart regulations that

• allowed EPA to make unilateral determinations that its actions taken pursuant to its authority under FIFRA were Not Likely to Adversely Affect ("NLAA") protected species without any informal consultation with or concurrence of the Services; and
• "effectively equat[ed] FIFRA emergencies with ESA emergencies" by expanding the use of "emergency" consultation procedures under 50 C.F.R. 402.05 to cover all FIFRA section 18 actions, which "allow EPA to permit an otherwise unauthorized use of a pesticide in response to 'emergency' conditions."

He concluded that "[t]he NLAA and emergency consultation provisions of the counterpart regulations issued by the Federal Defendants at 69 Fed. Reg. 47,732 (Aug. 5, 2004) are arbitrary and capricious, and contrary to law...."  The opinion also held that "[t]he Federal Defendants violated NEPA by failing to prepare an EIS properly considering all of the impacts of, and alternatives to, adoption of these procedures."

Judge Coughenour denied the plaintiffs' challenge to counterpart regulations that allow EPA to employ optional procedures for formal consultation with the Services under ESA section 7.